Appeal from judgment of Court of Common Pleas of Berks County, No. 703 of 1971, in case of Commonwealth of Pennsylvania v. Lillian B. Robinson.
Ralph W. D. Levan and A. Anthony Kilkuskie, for appellant.
Grant E. Wesner, Deputy District Attorney, and Robert L. VanHoove, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Watkins, P. J. Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this dissenting opinion.
[ 228 Pa. Super. Page 180]
This is an appeal from the judgment of sentence from the Court of Common Pleas, Criminal Division, of Berks County after refusal by the Court below to permit the defendant-appellant, Lillian B. Robinson, to change her plea from guilty to not guilty, before sentence.
The defendant was indicted for carrying a concealed deadly firearm without a license. She was called to trial on June 14, 1972. After the jury had been challenged and selected but before it was sworn she changed her plea from not guilty to guilty. After a long and detailed colloquy which fulfilled the mandate required in such cases, the plea was accepted. When called for sentence, she then indicated a desire to change her plea from guilty to not guilty. The court then suggested that she formally petition for the change.
The court below commented on the hearing on her petition to change her plea in his opinion as follows:
"At a hearing on said petition it appeared that her reason for her desire to withdraw her guilty plea was not any feeling of innocence but rather her disappointment that the recommended sentence by the Chief Parole and Probation Officer was greater than she had expected and hoped for although there was no plea
[ 228 Pa. Super. Page 181]
bargain. The hearing judge refused the prayer of her petition.
"The rule is stated to be that '. . . in determining whether to grant a pre-sentence motion for withdrawal of a guilty plea, "the test to be applied by trial courts is fairness and justice." If the trial court finds "any fair and just reason", withdrawal of the plea before sentence should be freely permitted, unless the prosecution has been "substantially prejudiced".' Commonwealth v. Forbes, 450 Pa. 185, 191 (1973); Commonwealth v. Morales, 452 Pa. 53, 54 (1973)."
In Commonwealth v. Woods, 452 Pa. 546, 307 A.2d 880 (1973), the court stated that there is no absolute right to withdraw a guilty plea, although a request for such change prior to sentencing should be liberally allowed. In Woods, supra, and in most cases involving a change of plea, there is a contention of innocence of the charge. See also Commonwealth v. Santos, 450 Pa. 492, 301 A.2d 829 (1973). The hearing held on her petition did ...